Tells the true stories of the hundreds of murder trials that take place every year in Sydney, NSW - most of which go unreported. Not only the facts of the matter, but also attempts to explain the often complex legal shenanigans that can take place during trials and appeals. Dedicated to the victims and their loved ones.

10 July, 2010

Too hot in the kitchen

Bin had been having arguments with Hiu and her husband Andrew over shared work and living arrangements. They all worked together at a restaurant that they shared a financial interest in, and also lived together in a house in Baulkham Hills. Given this sort of arrangement, perhaps it wasn’t surprising that things were starting to fall apart. Arguments were increasing during 1995, and in November they had a particularly bitter fight in the kitchen of the restaurant, resulting in Andrew brandishing a cleaver at Bin

Things did not improve when they all returned home that evening, and the two women were shouting at each other, with Hiu threatening to get a knife and chop up Bin. Andrew heard most of what was going on, and at the same time as Hiu uttered this threat, he heard noises downstairs in the kitchen that sounded like someone getting out a knife or cleaver. The two women apparently ended up getting into a physical fight, and somehow this got to the point where Hiu pulled out a rifle, aimed it at Bin and threatened to fire.

Bin’s husband Ivan intervened, and things seemed to go no further. Apparently there was further discussion of a more sensible nature and the turbulent evening had come to an end, as far as Andrew was concerned. There did not seem to be any more trouble for a fortnight or so (although Bin later claimed that Hiu had repeated her threats to kill Bin), but on the 22nd November tensions exploded into another physical fight between the two women.

Bin claimed she came home early, and didn’t expect to find Hiu at the house. She was worried about the rifle Hiu had pulled out two weeks before, and decided to go in search for it. She eventually located it in a dismantled condition, whereupon she took it back to her own room and reassembled it. She also inserted the magazine, which contained a number of bullets. She claimed she did this is for self-protection, because she was frightened Hiu would use it against her, as she had threatened.

Later on Bin heard Hiu outside her room in the upstairs part of the house, and as she came out of the bedroom she was confronted by Hiu. Bin said Hiu again made threats to killer, and stared attacking her with a stick. Bin had just enough time to grab a metal pole to defend herself with.

Anthony was also home by this stage and heard the sounds of yet another hostile fight. He saw Bin wielding the metal pole, but didn’t see any wooden stick. He didn’t see anything else between the two.

Shortly after, Bin found Hiu and shot her with the rifle, killing her instantly. In the process she also managed to wound Hiu’s daughter Vania. Bin later said that Hiu’s latest threat to killer, coupled with everything that had gone before, made her feel like she had nowhere to turn for help. She said she felt so threatened, and in such a state that it seemed to her the only way out was to use the rifle to kill Hiu.

Bin was put on trial for the murder of Hiu and the intent to murder Vania. She pleaded not guilty to both charges, and the jury returned a verdict of not guilty or murder but guilty of manslaughter for the killing of Hiu, and not guilty of intent to murder, but guilty of the malicious wounding of Vania.

In the trial Bin raised both provocation on Hiu’s part, as well as self-defence. It is clear from their verdict that the jury rejected self-defence, but accepted that there was sufficient provocation by Hiu to justify reducing the charge from murder to manslaughter. The same reasoning was applied to the wounding of Vania.

Bin was sentenced to six years in prison with a non-parole period of four years and six months for killing Hiu. For the malicious wounding of Vania she received a fixed term of four years imprisonment, to be served at the same time as the sentence for manslaughter. This is because the two crimes were committed together.

In this case, a somewhat rare Crown appeal was lodged against the manslaughter sentence. The Crown may appeal where they believe a sentence is too lenient, however the test is different to when an accused person appeals. An accused person need only show some level of overly severe sentencing to have a sentence reduced. For the Crown to be successful in a leniency appeal, it must show that the sentence is manifestly inadequate, i.e, not just lenient, but excessively lenient.

Bin lodged a counter-appeal claiming her sentence was too severe. Both arguments were heard and decided at the same time. The Appeal Court felt that in the circumstances, while Bin’s sentence was on the lenient side, the Crown had not shown it was excessively lenient to justify a re-sentencing, and the Crown’s appeal was rejected.

The Court also found that the Judge had made an error in taking into account the obvious distress and anguish experienced by Hiu’s family and friends, as the stated in their Victim Impact Statement. It is established law that while it is important for such Statements to be prepared by the family and read out at the sentence hearings, those views should not be taken into account by Judges in setting their sentences (and rightly so), as it suggests that the killer of a person with no family living or present to make such a statement does not deserve as big a sentence as someone whose family fills the courtroom. However, given the Court’s conclusion that Bin’s sentence was already quite light, her appeal was also rejected.